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3 November 2011

Poland: A Fact-Checker as Co-Author

In a fascinating but possibly questionable decision, the Polish Supreme Court appears to have created a new mechanism by which a person could become an author of a work protected by copyright — by revising it so as to delete parts which are factually incorrect.

In this case, the original non-physician author of the work (which was about music therapy) requested three other colleagues (presumably physicians) to cross-check her work. In doing so, they deleted certain sentences, including a suggestion that music replace anaesthesia in surgery.

The original author appears to have initially agreed to have the colleagues be co-authors, and then appears to have changed her mind. The colleagues sued, and they won the right to be recognised as co-authors at every stage of the case.

However, surprisingly, they do not appear to have won on grounds such as breach of contract or even by the invocation of estoppel. On the contrary, the colleagues won on the basis of copyright law. Tomasz Targosz reported that the Polish Supreme Court observed that co-authorship existed if “in consequence of the changes introduced by the plaintiffs, a work of a different character was created which without the plaintiffs’ contribution would have taken a different shape.”

While this may not seem entirely absurd, as Targosz notes, copyright does not protect underlying knowledge, and if this were the standard to be used, it could raise questions such as whether thesis guides would be co-authors of their students’ theses.

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